If A Person Ought To Have A Franks Hearing, Then They Ought To Have A Franks Hearing; Pre Franks Is Not Franks Enough

In a criminal case, most lawyers need to figure out what motions to file. A big part of this is to sit down with the government's evidence and try to figure out what parts of the government's case came from something that violated the constitution.

It's frustrating when some part of the evidence came from a search warrant - challenges to search warrants are tricky, because a judge already signed off on the warrant. It's not to say it can't be done, it's just different than challenging, say, if the FBI ran into a client's office and took a bunch of stuff without a warrant.

Sometimes you can challenge a warrant if the affidavit in support of the warrant clearly didn't establish probable cause to think there was going to be evidence where the cops searched.

The trouble with that is that normally the district court judge won't let you examine any witnesses to rule on the issue - if part of the point of filing pretrial motions is to learn more about the government's case and learn more about what their witnesses are going to be like, then this kind of a challenge to a warrant doesn't get you what you want.

Another thing you can do, though, is challenge the warrant because the cops lied or left something out of the application for the warrant that was really important. This is called a Franks challenge.

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that when a defendant makes a substantial preliminary showing that the police procured a warrant to search his property with deliberate or reckless misrepresentations in the warrant affidavit, and where such statements were necessary to the finding of probable cause, the Fourth Amendment entitles the defendant to an evidentiary hearing to show the warrant was invalid.

So, when is it that a person bringing a Franks challenge has made that preliminary showing? That's the subject of United States v. McMurtrey.

But first, the Seventh Circuit explains what the district court's options are when a Franks challenge to a warrant has been made:

A district court that is in doubt about whether to hold a Franks hearing has discretion to hold a so-called "pre-Franks" hearing to give the defendant an opportunity to supplement or elaborate on the original motion. Though permissible, this procedural improvisation is not without risk, as the sparse case law indicates. In such a pre-Franks hearing, the natural temptation for the court will be to invite and consider a response from the government. However, the court should not give the government an opportunity to present its evidence on the validity of the warrant without converting the hearing into a full evidentiary Franks hearing, including full cross-examination of government witnesses. We emphasize that the option to hold such a limited pre- Franks hearing belongs to the district court, not the defendant. If the defendant's initial Franks motion does not make the required "substantial preliminary showing," the court need not hold a pre-Franks hearing to provide the defendant a further opportunity to do so.

I've never seen a district court order a pre-Franks hearing. Now I kind of want to see one - it looks cool. The government doesn't get to talk, but the defense lawyer does. Awesome. It's like the inverse of a grand jury proceeding.

In Mr. McMurtrey's case, there were two affidavits in support of the warrant. They contradicted each other. So one had to be wrong.

At least one.

So, Mr. McMurtrey made a sufficient showing to get a Franks hearing.

That's not quite what the district court wanted to do though.

As the Seventh Circuit explained it

Rather than hold a full Franks hearing, however, the district court held a truncated pre-Franks hearing. The district court permitted the government to offer additional evidence to explain the discrepancies in the affidavits. That evidence should have required a full Franks hearing, yet the defendant was not permitted full cross-examination on the government's new evidence. The court then relied on the untested government evidence to find that the defendant had failed to make a showing sufficient to obtain a full Franks hearing.

Indeed, the defense lawyer started to cross the cop on his affidavit but was shut down on the grounds that the district court wasn't having a Franks hearing.

Because the court didn't give Mr. McMurtrey his full hearing, the case was remanded and his conviction was vacated.